27952-1 TD Desert Development 95CITY OF LA QUINTA
SUBDIVISION IMPROVEMENT AGREEMENT
THIS SUBDIVISION IMPROVEMENT AGREEMENT (the "Agreement") is made and entered into this
7 ` day of ti 0 0 e/" 6e r , 19 F6" , by and between T.D.
Desert Development, Ltd., a Delaware Corporation hereinafter referred to as "Subdivider," and the City of La
Quinta, a municipal corporation of the State of California, hereinafter referred to as "City."
RECITALS:
A. Subdivider has prepared and filed a final map or parcel map (the "Map") of a unit of land in the City of
La Quinta, County of Riverside, which unit of land is known as Tract No. 27952-1 (the "Tract") pursuant to
the provisions of Section 66410, et sec. of the California Government Code (the "Subdivision Map Act").
B. Prior to approval of the Map, Subdivider is required to install or agree to install certain public and private
improvements (the "Improvements")
C. The requisite improvements have not been installed and .accepted at this time.
D. It is therefore necessary that Subdivider and City enter into an agreement for the installation of the
improvements as provided in Section 66462 of the Subdivision Map Act.
NOW, THEREFORE, it is agreed by and between the parties hereto as follows:
1. Revision of Plans. Subdivider shall, within thirty (30) days of City Council approval of the Map,
complete final corrections and revisions to improvement plans and submit for approval original plans meeting
the requirements of the City Engineer.
2. Improvements. Subdivider shall construct the public and private street, drainage, utility, landscaping,
and other improvements required to be constructed or agreed to be constructed under this Agreement as listed
and described in the List of Improvements attached hereto as Exhibit "A" and incorporated herein (the
"Improvements"), and shall bear the full cost thereof. The methods, standards, specifications, sequence, and
scheduling of construction shall be as approved by the City Engineer.
3. Improvement Security.
A. One class of security to be provided by Subdivider, hereinafter referred to as "performance
security," shall assure the faithful performance of this Agreement including payment of associated plan check
and permit fees. A second class of security to be provided by Subdivider, hereinafter referred to as "payment
security," shall assure the payment of the cost of labor, equipment and materials supplied to construct the
Improvements. A third class of security to be provided by Subdivider, hereinafter referred to as "guarantee
security," shall serve as a guarantee and warranty of the Improvements for a period of one year following the
completion and acceptance of the Improvements. Subdivider shall furnish performance and payment security
prior to and as a condition of City Council approval of the Map, Subdivider shall have furnished performance
and payment securities to City as a guarantee of the completion of the Improvements, as set forth in
Government Code Section 66499 et sec.
B. Subject to the approval of the City Engineer, security may be furnished in the form of (1) a deposit
of cash or negotiable bonds, of the kind approved for securing deposits of public moneys with City or in favor
of City, with a responsible escrow agent or trust company, (2) bonds which are of the form specified in Section
66499.2 of the Subdivision Map Act and satisfactory in form and substance to the City Attorney and are
executed by a corporation authorized to transact surety business in the State of California, (3) an instrument
of credit from an agency of the state, federal, or local government when any agency of the state, federal, or
local government provides at least twenty percent (20%) of the financing for the Improvements to be
completed, or from one or more financial institutions subject to regulation by the state or federal government
and pledging that the funds necessary to carry out the completion of the Improvements are on deposit and
guaranteed for payment, or a letter of credit issued by such a financial institution, (4) a lien upon the Tract,
created by contract between City and Subdivider, if City finds that it would not be in the public interest to
require the installation of the Improvements sooner that two (2) years after the recordation of the Map, (5) an
irrevocable instrument of credit from one or more financial institutions subject to regulation by the state or
federal government pledging that the funds necessary to carry out the agreements are on deposit, guaranteed
for payment, and constitute a trust fund which is not subject to levy or attachment by any creditor of the
depositor until released by the City, and guaranteeing that all or any portion of the funds available pursuant to
the letter of credit will be paid upon the written demand of the City and that such written demand need not
present documentation of any type as a condition of payment, including proof of loss, and pledging that the
condition of the obligation of the letter of credit is such that if the bounded principal, his heirs, executors,
administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and
perform the covenants, conditions and provisions in this Agreement and any alteration thereof made as herein
provided, on his or their part, to be kept and performed at the time and in the manner herein specified, and in
all respects according their true intent and meaning, and shall indemnify and save harmless the City and its
Subdivision Improvement Agreement - Tract 27952-1 Page 1 of 4
officers, agents and employees, as herein stipulated, then the obligation shall become null and void; otherwise
it shall be and remain in full force and effect. The duration of any such bond or letter of credit shall be for a
period of not less than one year from the execution of the Agreement or such longer period for completion of
the Improvements, whichever is greater; further provided that the duration of such bond or letter of credit shall
be extended to provide the performance security holdback provided in Section 13 hereof.
C. All securities shall be furnished in accordance with the provisions of Exhibit A. Separate security
shall be furnished for performance security and payment security. The amount of the performance security
shall equal One Hundred Percent (100%) of the estimated cost of constructing the Improvements, including
payment of plan check and permit fees, as estimated by the City Engineer or a duly authorized representative
of the City Engineer. Payment security shall equal Fifty Percent (50%) of the amount of performance security
except as otherwise set forth in Exhibit A. Guarantee security shall equal Ten Percent (10%) of the amount
of performance security except as otherwise set forth in Exhibit A.
D. City shall retain guarantee security for one (1) year following acceptance or approval of the
Improvements to support the guarantee of the Improvements pursuant to Section 12 hereof. As part of the
obligation secured by each of the performance security, payment security and guarantee security, and in
addition to the face amount of each such security, each such security shall include and assure the payment
of costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by the City in
successfully enforcing the obligations thereby secured.
E. Certain Improvements required herein may be deferred for construction by others at a later date.
Deferred improvements, if any, are identified in Exhibit A. Performance security furnished for deferred
improvements shall remain in place until the deferred improvements are constructed and costs are known and
shall guarantee the reimbursement by Subdivider of Subdivider's share of the cost of the deferred
improvements. Payment security and guarantee security shall not be required for improvements deferred for
construction by others.
Upon written demand from City, Subdivider shall deposit cash with City in lieu of or in replacement of
securities guaranteeing deferred improvements. If Subdivider fails to deposit said cash within 30 days of the
date of the written demand from City, City may present a written demand to Subdivider's Surety for payment
of said cash and Subdivider's Surety shall pay to City the lesser of: 1) the amount demanded, or 2) the amount
of the security.
4. Permits Required. Prior to commencing any phase of work, Subdivider shall obtain all permits required
for that phase of work and pay all required fees. Work performed under a permit or permits shall comply with
all provisions of the required permits.
5. Off -site Improvements. When the construction of one or more of the Improvements required or
necessitates the acquisition of real property not owned by Subdivider or City, Subdivider shall use its best
efforts to purchase such real property at a reasonable price. In the event that Subdivider is unsuccessful,
despite its best efforts, to acquire such real property at a reasonable price, Subdivider may request in writing
that City attempt to acquire such real property. City may, but is not required to, agree to attempt to acquire
such real property on behalf of Subdivider. If City so agrees, City and Subdivider shall enter a separate written
agreement therefor in a form acceptable to the City Attorney. Such agreement shall provide that Subdivider
will advance City One Hundred Fifty Percent (150%) of the appraised fair market value of the real property,
with any unexpended funds refunded to Subdivider and any additional funds required for City's acquisition paid
by Subdivider upon the conveyance of such real property to Subdivider. In no event shall the failure of
Subdivider or City to acquire such real property excuse, waive, or otherwise terminate Subdivider's obligation
to construct the applicable Improvement pursuant to this Agreement or the tentative map, parcel map or Map
conditions of approval (Conditions of Approval).
6. Completion of Improvements. Subdivider shall begin construction of the Improvements within ninety
(90) days and shall complete construction within twelve (12) months after the approval of this Agreement.
Portions of the Improvements may be completed at a later date, as determined by the City Engineer or as set
forth in Exhibit A.
7. Force Majeure. In the event that Subdivider is unable to perform within the time limits herein due to
strikes, act of God, or other events beyond Subdivider's control, the time limits for obligations affected by such
events will be extended by the period of such events.
8. Time Extension. Subdivider may make application in writing to the City Council for an extension of time
for completion of the Improvements. The City Council, in its sole and absolute discretion, may approve or deny
the request or conditionally approve the extension with additions or revisions to the terms and conditions of
this Agreement.
As a condition of the time extension, Subdivider shall furnish to City securities, similar in form and
substance to those required in Article 3 hereinabove, to cover the period of extension. The value of the
securities shall be sufficient to insure the performance of and payment for improvement work that remains
incomplete at the time of the extension, and to provide guarantee security on completed improvements.
Subdivision Improvement Agreement - Tract 27952-1 Page 2 of 4
9. Survey Monuments. Before final approval of street improvements, Subdivider shall place survey
monuments in accordance with the provisions of Sections 66495, et sec. of the Subdivision Map Act and of
the La Quinta Municipal Code. Subdivider shall provide the City Engineer written proof that the monuments
have been set and evidence of payment and receipt thereof by the engineer or surveyor setting the
monuments.
10. Final Acceptance or Approval of Improvements. At the completion of construction and prior to
acceptance of the improvements by the city, Subdivider shall submit a request for final approval by the city.
The request shall be accompanied by any required certifications from Subdivider's engineers or surveyors,
security release authorizations from other agencies having jurisdiction over and approval authority for
improvements secured with this Agreement, and any required construction quality documentation not
previously submitted.
Upon receipt of said request, the City Engineer or a duly authorized representative will review the
construction quality documentation and will inspect the Improvements. If the Improvements are determined
to be in accordance with applicable city standards and specifications, and as provided herein, and Subdivider
has provided revised plans as required in Paragraph 11, hereinafter, the City Engineer shall recommend approval
of private improvements and acceptance of public improvements by the City Council.
11. Revisions to Plans. When the Improvements have been inspected and approved by the City
Engineer, Subdivider shall make any necessary revisions to the original plans held by City so the plans depict
the actual Improvements constructed. When necessary revisions have been made, each separate sheet of the
plans shall be clearly marked with the words "As -Built," "As -Constructed," or "Record Drawing," the marking
shall be stamped by an engineer or surveyor, as appropriate for the improvements thereon, who is licensed to
practice in California, and the plans resubmitted to the City Engineer.
12. Improvement Guarantee. Subdivider hereby guarantees the improvements to City for a period of
one (1) year, beginning on the date of final acceptance of all tract Improvements by the City Council, against
any defective work or labor done, or defective materials furnished, and shall repair or replace such defective
work or materials.
13. Release of Security. City shall retain and release securities in accordance with the provisions of
Section 66499.7 of the Subdivision Map Act and of Section 3 of this agreement. Prior to the release of
payment security, the City Engineer may require Subdivider to provide a title report or other evidence sufficient
to show claims of lien, if any, that may affect the amount of payment security released.
14. City Right to Cure. If Subdivider fails to perform any obligation hereunder and such obligation has
not been performed within sixty (60) days after written notice of default from City, then City may perform the
obligation, and Subdivider shall pay the entire cost of such performance by City including costs of suit and
reasonable attorney's fees incurred by City in enforcing such obligation. In cases of emergency or compelling
public interest, as determined by the City Engineer, the requirement for written notice of default and/or the
passage of sixty (60) days shall be deemed waived and all other provisions of this Article shall remain in effect.
15. Indemnification. Subdivider hereby binds itself, its officers, employees, agents, representatives,
executors, administrators, guarantors, heirs, and assigns, and agrees to indemnify, defend and hold City and
its officers, employees, agents, representatives, and assigns harmless from and against any losses, claims,
demands, actions, or causes of action of any nature whatsoever, arising out of or in any way connected with
Subdivider's performance hereinunder, including costs of suit and reasonable attorneys' fees.
16. No Modification of Conditions. This Agreement shall in no respect act to modify or amend any
provision of the Conditions of Approval. In the event that any requirement or condition of this Agreement is
inconsistent with or fails to include one or more provisions of the Conditions of Approval, which document(s)
is (are) incorporated herein by reference, the provisions in the Conditions of Approval shall remain in effect and
shall control.
17. SeverabilitX. In the event that any provision or provisions of this Agreement are held unenforceable,
all provisions not so held shall remain in full force and effect.
18. General Provisions
A. All notices pursuant to this Agreement shall be in writing and shall be personally delivered or sent
by registered or certified mail, return receipt requested, to the parties at their respective addresses indicated
below their respective signatures. Notices personally delivered shall be effective upon delivery. Notices mailed
as provided herein and sent postage prepaid shall be effective upon the date of delivery or refusal indicated
on the return receipt. Either party may change its address for notices hereunder by notice to the other given
in the manner provided in this subparagraph.
B. The terms, conditions, covenants, and agreements set forth herein shall apply to and bind the heirs,
executors, administrators, assigns, and successors of the parties hereto.
C. Neither party to this Agreement relies upon any warranty or representation not contained in this
Agreement.
Subdivision Improvement Agreement - Tract 27952-1 Page 3 of 4
D. This Agreement shall be governed by and interpreted with respect to the laws of the State of
California.
E. In the event of any dispute between the parties with respect to this Agreement, the prevailing party
shall be entitled to prompt payment of its reasonable attorneys' fees from the non -prevailing party.
F. Any failure or delay by either party in asserting any of its rights and remedies as to any default shall
not operate as a waiver of any default or of any such rights or remedies provided for hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written
above.
CITY OF LA QUINTA:
ATT T:
'Xfity Clerk
SUBDIVIDER: T.D. Desert Development, Ltd.
By: jo,
Title:4�
By:
Title:
Tom Genovese
City Manager
ADDRESS:
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9aas3
Reviewed and Approved: . ✓11
City Engineer Date
Approved as to Form:
City Attorney Date
Subdivision Improvement Agreement - Tract 27952-1 Page 4 of 4
Exhibit A
LIST OF IMPROVEMENTS AND SECURITY AMOUNTS - TRACT 27952-1
Except as otherwise provided herein, Subdivider shall furnish performance security and payment security
prior to City Council approval of the Map.
Improvements designated as "deferred" will be constructed by others at a later date as determined by
City. Security shall remain in place until such later date to guarantee Subdivider's payment for the cost
of the deferred improvements.
As elements of the work are completed, Subdivider may request a maximum of three partial releases of
performance security. Payment (labor & materials) security may be released only after final
acceptance/approval by the La Quinta City Council of all tract improvements.
Partial releases of performance security will be evaluated and may be granted, in whole or in part, by
the City Engineer. Requests for partial releases, setting forth in detail the amount of work completed
and the value thereof, shall be made in writing to the City Engineer.
Improvement Description
Grading
Street Improvements
Domestic Water
Sanitary Sewer
Underground Electric
Monumentation
Performance Payment
$30,000 $15,000
87,000 43,500
39,000 19,500
19,000 9,500
24,000 12,000
4,000 - 0
Totals: $203,000 $99,500
to
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MARY MANDERSCHEID
COMM. #90008b z
Notary PUNC-California n
RIVERSIDE COUNTY
My Comm, expires MAR 12,19%
Name(s) of Signer(s)
proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is/are subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal
OPTIONAL
Though the data below are not required by law, the information may prove valuable to persons relying on the
document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER: DESCRIPTION OF ATTACHED DOCUMENT
❑ Individual
❑ Corporate Officer:
Title(s) Title or Type of Document
❑ Partner(s): ❑ Limited
❑ General
❑ Attorney -in -Fact
❑ Trustee(s) Number of Pages
❑ Guardian/Conservator
❑ Other:
Date of Document
SIGNER IS REPRESENTING SIGNERS
Name of Person(s) or Entity(ies) (Other than named above)
PERFORMANCE BOND
Bond No. 76S 100953309 BCA
WHEREAS, the City Council of the City of La Quinta, State of California, and
T.D. Desert Development, Ltd., a Delaware Limited Partnership (hereinafter referred
to as "Principal") have entered into an agreement whereby Principal agrees to install
and complete certain designated improvements, which said agreement, dated October
19, 1995, and identified as Subdivision Improvement for Parcel 9 is hereby referred
to and made a part hereof; and
WHEREAS, said Principal is required under the terms of said agreement to
furnish a bond for the faithful performance of said agreement.
NOW THEREFORE, we the Principal and The Aetna Casualty and Surety
Company, as Surety, are held and firmly bound unto the City of La Quinta (hereinafter
referred to as the "City"), in the penal sum of Two Hundred and Three Thousand and
No/Dollars ($203,000.00) lawful money of the United States, for the payment of which
sum well and truly to be made, we bind ourselves, our heirs, successors, executors and
administrators, jointly and severally, firmly by these presents.
The condition of this obligation is such that if the above bounded Principal, his
or its heirs, executors, administrators, successors or assigns, shall in all things stand to
and abide by, and well and truly keep and perform the covenants, conditions and
provisions in the said agreement and any alteration thereof made as therein provided,
on his or their part, to be kept and performed at the time and in the manner therein
specified, and in all respects according to their true intent and meaning, and shall
indemnify and save harmless the City, its officers, agents and employees, as therein
stipulated, then this obligation shall become null and void; otherwise it shall be and
remain in full force and effect.
As a part of the obligation secured hereby and in addition to the face amount
specified therefore, there shall be included costs and reasonable expenses and fees,
including reasonable attorney's fees, incurred by the City in successfully enforcing
such obligation, all to be taxed as costs and included in any judgment rendered.
The Surety hereby stipulates and agrees that no change, extension of time,
alteration or addition to the terms of the agreement or to the work to be performed
thereunder or the specifications accompanying the same shall in any way affect its
obligations on this bond, and it does hereby waive notice of any such change, extension
of time, alteration or addition to the terms of the agreement or to the work or to the
specifications.
LABOR AND MATERIAL BOND
Bond No. 76S 100953310 BCA
WHEREAS, the City Council of the City of La Quinta, State of California, and
T.D. Desert Development, Ltd., a Delaware Limited Partnership (hereinafter referred
to as "Principal") have entered into an agreement whereby Principal agrees to install
and complete certain designated improvements, which said agreement, dated October
_1_, 1995, and identified as Subdivision Improvement for Parcel 9 is hereby referred
to and made a -part hereof; and
WHEREAS, said Principal is required under the terms of said agreement to
furnish a bond for the faithful performance of said agreement.
NOW THEREFORE, we the Principal and The Aetna Casualty and Surety
Company, as Surety, are held and firmly bound unto the City of La Quinta (hereinafter
referred to as the "City"), in the penal sum of Ninety Nine Thousand Five Hundred
and No/Dollars ($99,500.00) lawful money of the United States, for the payment of
which sum well and truly to be made, we bind ourselves, our heirs, successors,
executors and administrators, jointly and severally, firmly by these presents.
The condition of this obligation is such that if the above bounded Principal, his
or its heirs, executors, administrators, successors or assigns, shall in all things stand to
and abide by, and well and truly keep and perform the covenants, conditions and
provisions in the said agreement and any alteration thereof made as therein provided,
on his or their part, to be kept and performed at the time and in the manner therein
specified, and in all respects according to their true intent and meaning, and shall
indemnify and save harmless the City, its officers, agents and employees, as therein
stipulated, then this obligation shall become null and void; otherwise it shall be and
remain in full force and effect.
As a part of the obligation secured hereby and in addition to the face amount
specified therefore, there shall be included costs and reasonable expenses and fees,
including reasonable attorney's fees, incurred by the City in successfully enforcing
such obligation, all to be taxed as costs and included in any judgment rendered.
The Surety hereby stipulates and agrees that no change, extension of time,
alteration or addition to the terms of the agreement or to the work to be performed
thereunder or the specifications accompanying the same shall in any way affect its
obligations on this bond, and it does hereby waive notice of any such change, extension
of time, alteration or addition to the terms of the agreement or to the work or to the
specifications.
i
OUTSTANDING BOND REPORT
Name: T. D. Desert Development
Tract No. 27952-1
Date of Contract: November 7, 1995
Required Bond Amounts:
Grading -
Streets -
Water -
Sewer -
Electric -
Monument -
$30,000/$15,000
$87,000/$43,500
$39,000/$19,500
$19,000/$ 91500
$ 24,000/$12,000
$ 4,000
Dates of Bond Reductions:
Outstanding Bonds:
Amount:
$ 203,000
Bond No.
- performance/labor materials
- (same)
- (same)
- (same)
- (same)
- performance only
76S100953309BCA
$ 99,500 76S100953310BCA
Date Cancelled/Released: